Compromise Is a Losing Battle for the Supreme Court

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read More.

The briefs are in -- and the Supreme Court’s extraordinary effort to bring about a compromise in a contraceptive care case looks like a bust. Instead of finding a mutually agreeable solution, religious groups and the federal government appear to have only hardened their positions.

In simultaneous filings late Tuesday night, each side took the opportunity to strengthen their arguments over how religious organizations go about seeking an exemption to the mandate for providing employees contraceptive care under the Affordable Care Act.

The U.S. solicitor general basically said that the government was already doing what the Supreme Court was asking, which implies unwillingness to do more. The Little Sisters of the Poor and other religious groups said they would accept the court’s proposed compromise -- as long as several conditions were added, which would transform the proposed solution to something the government won’t accept.

In case you missed it, the idea of a compromise was suggested by the court last month after an oral argument that broadcast the likelihood that the court would split 4-4 in deciding the case. Such a tie would leave in place a patchwork of rules in different circuits on how religious groups get exemptions from the contraceptive mandate.

The court proposed its compromise in the form of a question. It directed both sides to say whether there was any way to get contraceptive care to the employees of religious groups through the groups’ insurance companies, “but in a way that does not require any involvement” by the religious groups beyond deciding not to provide coverage for contraceptives.

In their briefs, both sides gently pointed out to the justices that their proposed compromise could only work for religious groups that use third-party insurers. Many self-insure, using third parties only to administer their plans, and for those groups there would be no easy way to stay uninvolved.

The solicitor general’s brief observed that the court’s order “correctly anticipate[d]” the limited applicability of the proposal. But that’s being nice. It seems much more probable that the court didn’t quite realize that its proposed compromise couldn’t solve the problem for the many self-insured religious groups.

Regarding those groups that buy third-party insurance, the government said that its existing exemption plan already relieves religious groups “of any obligation to provide contraceptive coverage and instead requires insurers to provide coverage separately.” It said the only difference with the court’s compromise notion is that current rules require an employer to certify to its insurance company that it has a religious reason to seek exemption. Under the court’s proposal, the company could simply choose not to buy contraceptive care.

The government’s brief did say that if the court were to mandate something like its proposal, it should make it clear that no other aspects of the insurance company's provision of contraceptive coverage should be altered from the way it’s currently done.

What that means, in code, is that providing contraceptive care to employees must be “seamless,” as Solicitor General Donald Verrilli insisted at oral argument. The government says it has a compelling interest in making sure that employees get contraceptive care as part of their regular healthcare, without going through a separate registration process or having to buy separate insurance or going to separate providers.

That’s where the apparently irresolvable conflict with the religious groups kicks in. At oral argument, Paul Clement, the former solicitor general representing the religious groups, emphasized that his clients felt “hijacked” by the use of their insurers and healthcare providers to give contraceptive care, even though the groups weren’t paying for it. He strongly suggested that, to satisfy his clients, it would have to be clear to employees that they were getting treatment by a completely separate entity.

In the religious groups’ brief, they doubled down on this insistence. With some tactical wisdom, they presented themselves as ready to accept the court’s compromise. But then they said they would accept it only if contraceptive care were “provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication.” This is the very opposite of the seamlessness demanded by the government.

Doubtless aware that they were, in effect, rejecting the compromise by adding conditions the government won’t accept, the religious groups also made a new claim that arguably goes beyond the court’s mandate. They said the mere fact the court could dream up a compromise alternative was proof that existing procedure isn’t the least restrictive way to achieve an exemption -- and is therefore unlawful.

That’s an argument that the four conservatives might well be prepared to adopt. But it probably won’t sway the four liberals, who might say that there’s no substantial burden in filing a certification form, or else accept that the government has a compelling interest in delivering contraceptive care seamlessly.

The court doesn’t usually propose compromises. The briefs here suggest why that’s a good policy. By the time a case reaches the Supreme Court, legal positions have hardened. Neither side is prepared to give, even when they know the court wants them to do so. The contraceptive mandate is likely to remain unresolved, both in the court and politically, until we get a fifth justice.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read more